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Kinds of offers and rules of communication of offers

Offer:-

An offer is the starting point of any agreement. An agreement becomes complete as soon as the offer is accepted and communicated to the person making the offer.

It is defined in Section 2(a) of Indian Contract Act 1972 as follows: “When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of the other to such act or abstinence, he is said to make a proposal.” The word ‘proposal’ used above is synonymous in English Law with ‘offer’.

The person making the proposal is called the ‘promisor’ and the person accepting the proposal is called the ‘promisee’ as per Section 2(c).

TYPES OF OFFERS :-

An offer can be made to a definite person or persons or to the world at large. In light of the above statement, offers can be classified into:

a. General Offer
b. Specific Offer

Specific Offer
An offer made to a definite person or persons is known as specific offers. Such offers can be accepted only by such person or persons. For example: A offers to sell B a pen for Rs. 200. Since the offer is made only to B, it is a specific offer.

General Offer
An offer made to the world at large is known as a general offer. Such offers can be accepted by anyone but the contract is not entered into with the whole world. It is made only with person who comes forward & performs the condition of the proposal.

The proposal may be for the whole world at large but be for the world at large but the number of acceptances to a proposal may be expressly or impliedly limited. For example: A advertises in a newspaper offering a reward for Rs. 900 to anyone who finds his lost dog. Such an offer can be accepted by anyone who finds and return the dog.

Carlill V. Carbolic Smoke Ball Co (1893) 1 QB 256

The leading authority on the subject of general offer is Carlill v. Carbolic Smoke Ball Co. In this case, the defendant company offered by advertisement to pay £100 to anyone who contracts the increasing epidemic influenza, cold or any other disease caused after having used the Carbolic ball according to the printed directions. It was further advertised that £100 is deposited with the Alliance Bank showing its sincerity in the matter.

In an action by plaintiff to recover the promised reward after having contracted influenza despite using the ball as per the directions, it was contended that the offer was not made to anyone in person and the plaintiff had not communicated her intention to accept. This contention was rejected and it was observed that:

1. Offer made to world at large is entered into contract with that limited persons who come forward and perform the condition.
2. Communication of acceptance in such cases is not necessary.

Where a general offer is of continuing nature, as in the above case, it will be open for acceptance to any number of people until it is retracted. But where an offer requires some information about a missing thing, like the one in illustration of lost dog above, it is closed as soon as the first information is received.

Rules Relating To Proposal’s Communication

1. Willingness should be signified:-
As per Section 2(a), the willingness to make a proposal should be signified by the offeree. A proposal may be communicated in any way whatsoever that has the effect of manifesting the offeree, the willingness to do or to abstain from doing an act.

In Carlill case, the willingness to enter into a contract was signified by stating that £100 have been deposited in the Alliance Bank.

2. Mode of Communication:-
The Act does not provide any specific mode of communication of proposal. So it may be done in any manner or form as long as same fulfils the requirement of the Act. It may be made in writing, words (express) or even by the conduct of the parties (implied).

In Upton Rural District Council v. Powell (1942), the plaintiff had asked the services of Upton and Upton in response to that request, provided the services and hence, the services were rendered on an implied promise to pay.

3. Communication when complete:-
An offer is complete when it comes to the knowledge of the offeree. When an offer has not been communicated to the person and he does an act in ignorance of the same, then even though it may be as per the terms of the offer, there is no acceptance, since there was no knowledge of the offer. This principle was well accepted in Lalman Shukla v. Gauri Dutt (1918).

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WHEN TO FILE AN FIR?

FIR’s are lodged only for cognizable offence.

Police officer can not refuse to register the FIR for cognizable offences.

FIR can be registered at the police station under whose jurisdiction the crime was committed.

A police officer can only refuse to file FIR if he believes the case involves a petty offence.

If a police officer refuse to register an FIR in a cognizable offence, one can approach the superintendent of police or the magistrate and file a written complaint.

For Non-Cognizable offence , a complaint is submitted to magistrate (Public Nuisance, Petty Offence, etc)

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COLLEGIUM SYSTEM Recently, the Union minister of Law and Justice criticized the Supreme Court Collegium system, saying that judges only recommend the appointment or elevation of those they know and not always the fittest person for the job.

  • Articles 124(2) and 217 of the Indian Constitution deal with the appointment of judges to the Supreme Court and High Courts .

What is a Collegium System and its Evolution

  • About:
    • It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of parliament or by a provision of the Constitution.
  • Evolution of the System:
    • First Judges Case (1981):
      • It declared that the “primacy” of the CJI’s (Chief Justice Of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
      • The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
    • Second Judges Case (1993):
      • SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
      • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
    • Third Judges Case (1998):
      • SC on the President’s reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Who Heads the Collegium System?

  • The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior most judges of the court.
  • A High Court collegium is led by the incumbent Chief Justice and two other senior most judges of that court.
  • Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.

Procedures for Judicial Appointments

  • For CJI:
    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
  • For SC Judges:
    • For other judges of the SC, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The content must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
  • For Chief Justice of High Courts:
    • The Chief Justice of the High Court is appointed as per the policy of having Chief Justices from outside the respective States.
    • The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

What are the Issues Related to the Collegium System?

  • Exclusion of Executive:
    • The complete exclusion of the executive from the judicial appointment process created a system where a few judges appoint the rest in complete secrecy.
    • Also, they are not accountable to any administrative body that may lead to the wrong choice of the candidate while overlooking the right candidate.
  • Chances of Favouritism and Nepotism:
    • The collegium system does not provide any specific criteria for testing the candidate for the post of CJI because of which it leads to the wide scope for nepotism and favouritism.
    • It gives rise to non-transparency of the judicial system, which is very harmful for the regulation of law and order in the country.
  • Against the Principle of Checks and Balances:
    • The principle of check and balance is violated in this system. In India, three organs work partially independently but they keep check and balance and control on the excessive powers of any organ.
    • However, the collegium system gives Judiciary immense power, which leaves little room for checks and poses the risk of misuse.
  • Close-Door Mechanism:
    • Critics have pointed out that this system does not involve any official secretariat. It is seen as a closed-door affair with no public knowledge of how and when a collegium meets, and how it takes its decisions.
    • Also, there are no official minutes of collegium proceedings.
  • Unequal Representation:
    • The other area of concern is the composition of higher judiciary, women are fairly underrepresented in the higher judiciary.

What were Attempts to reform the Appointment System?

  • The attempt made to replace it by a ‘National Judicial Appointment Commission’ (through Ninety-ninth Amendment Act, 2014) was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

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CLAUSES TO BE INCLUDED IN THE CONTACT

DEFINITION:-

According to section 2(h) of the Indian Contract Act, 1872, ‘An agreement which is enforceable by law is a Contract’.

  • TITLE OF AGREEMENT :-

It is necessary to name the agreement. The title of the agreement denotes nature or type of agreement.

  • NAME OF THE PARTIES :-

The parties are provided with a particular name that is used to refer them in the entire agreement.

  • RECITALS :-

This clause gives the background of the parties and the purpose of entering into the agreement. If it is a supplementary (additional) agreement then the reference of the main agreement is provided under this clause.

  • DEFINITIONS :-

There are certain terms used in the agreement which have a technical meaning. Such terms should be defined under this clause of the agreement that makes interpretation accurate.

  • REPRESENTATION AND WARRANTIES :-

This clause provides an underlying statement of fact by the parties (for example, Mr. X is sole owner of the property, the property is free from encumbrances).

  • COVENANTS :-

Covenant means a promise to do certain acts in future. Unlike representations and warranties, it does not include statements of fact .

  • TERM :-

The duration of the agreement should be included in the agreement (in year or months). The term of the agreement shall be in force unless contract is terminated by either parties or on mutual consent of both the parties (term clause is linked to termination clause).  

  • CONSIDERATION :-

One of the essential elements for a contract to be considered valid is consideration. Consideration can be monetary or it may take the form of a promise to carry out a particular act (such as services, money, etc.).

  • Terms of Payment 

Duration of Payment:

  1. Time based payments – every 30 days, 45 days, etc. 
  2. Progressive payments – on completion of first milestone, on receiving results, 
  3. Full payment on the entire work done. 

Method of payment:

  1. Fixed Based Model – a fixed amount of payment shall be made;
  2. Revenue Based Model – a percentage of revenue earned shall be paid, 
  3. Profit Based Model – a percentage of profit made shall be paid. 

Mode of payment:

  1. Cash,
  2. Cheque,
  3. Net Banking,
  • INDEMNIFICATION :-

It is basically about shifting the risk to another party. In case breach of any provision by one party causes loss to another party, the defaulting party has to make good the losses caused to the non-defaulting party. How indemnification will be done should also be mentioned in this clause.

  • TERMINATION :-

Circumstances when the agreement can be brought to an end by either parties shall be mentioned. Also, how many days prior written notice period is mandatory should be specified.

  • INVOICES :-

THINGS TO BE INCLUDED IN INVOICE :-Date of invoice, name of the parties, name of item/activity/service for which invoice is made, amount of invoice, percentage of taxes, etc. 

In some contacts invoice to be included such as MSME if they are registered.

  • NOTICE :-

The address or email-id of the parties should be provided in this clause to deliver notice to the parties. 

  • FORCE MAJEURE :-

In case any event is beyond the control of parties or unforeseeable, whether the agreement can be terminated due to non-performance by either parties?

  • INTELLECTUAL PROPERTY :- Depends on type of contact.

This clause will help to know who shall own the intellectual property (patents, copyright and trademark) that is created out of contract and whether such intellectual property can be assigned or transferred to a third party.

  • CONFIDENTIALITY :-

Whether the confidential information exchanged between the parties can be shared with a third party. Also provide with the exceptions to it. It is recommended to define “confidential information” in the definition clause. 

  • EXCLUSIVITY :- depends on type of contact.

The parties can be restrained from providing the same kind of services or entering into the same nature of agreement with a third party during the existence of this agreement.

  • SEVERABILITY :-

In case, some part of contract is declared illegal then other part of contract shall be valid. Such a clause saves the contract from being entirely dysfunctional.

  • AMENDMENT :-

If the Parties wants to make any alteration in the contract, its procedure should be specified in this clause.

  • JURISDICTION :-

In case of any dispute between the parties, which court shall have jurisdiction to handle such matters? The Parties shall use the word ‘exclusive jurisdiction’ to limit the location.

  • GOVERNING LAW :-

The laws applicable to the contract are very important (for example, this agreement shall be governed by the laws of India).

  • DISPUTE RESOLUTION :-

How the dispute shall be resolved? There are different modes of dispute resolution such as mediation, arbitration or conciliation.

  • SIGNATURE SECTIONS :-

First and last pages need to be signed by the parties along with initials on other pages. Signature is mandatory for validity of the contract. In certain contracts, attestation from witnesses shall also be required.

  • SCHEDULES IS ALSO KNOWN AS ANNEXURES :- Depends on type of contact.

When the information is too lengthy to be included in the clauses section, such details can be mentioned in tabular or pointer form at the end of the agreement (for example: list of properties sold, services to be provided by event managers).

  • ENTIRE AGREEMENTS :-

This clause specifies that the agreement covers all rights and obligations of the parties and supersedes all other agreements whether written or oral between the parties. Such a clause helps to avoid negotiations earlier made which were not finalised later.

  • DUPLICATE COPIES :-

It is recommended that each party should have a copy of the agreement and both the parties have understood and agreed upon terms and conditions of the agreement.

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SUPREME COURT VERDICT ON DEMONETISATION

The apex court in a 4:1 majority verdict upheld the government’s 2016 decision to demonetise the Rs 1,000 and Rs 500 denomination notes decision making process was not flawed,

Supreme court upheld the legality of the government decision in 2016 to demonetise 86% of the country’s cash in circulation the decision was taken in consultation with the central bank and followed due process.

A five-judge bench of the country’s top court passed the verdict by a majority on a batch of petitions questioning the move. one out of the five judge wrote a dissenting opinion.

“The…notification dated 8th November 2016 does not suffer from flaws in the decision-making process,” justice B R Gavai, one of the four judges who agreed on the decision, said in the written opinion.

Justice B. V. Nagarathna, who was the juniormost judge in the constitution bench also comprising justice S A Nazeer, B R Gavai, A S Bopanna and V Ramasubramanian, said demonetisation of entire series of notes at the centre’s instance is a far more serious issue that has wider implication on the economy and the citizen of the country.

Justice B .V .Nagarathna of the supreme court, who gave a dessenting verdict on demonetisation, said the scrapping of the whole series of Rs 500 and Rs 1,000 currency notes has to be done through a legislation and not through a gazette notification as parliament cannot be left aloof in a matter of critical importance.

Justice B V Nagarathna observed that there was no independent application of mind by the Reserve Bank of India (RBI) and the entire exercise was carried out in 24 hours.

The sole women judge , justice B. V. Nagarathna, on the five-member Bench however disagreed with majority, saying the government’ s notification issued under section 26(2) of the Reserve Bank of India (RBI) was unlawful.

But justice B. R. Gavai , delivered the judgment for the majority which included Justices S. Abdul Nazeer , AS Bopanna, V . Ramasubramanian, said the statutory procedure under section 26(2) ws not violated merely because the centre has taken the initiative to “advise” the Central Board to consider recommending demonetisation. The government was empowered under the provision to demonetise “all series” of banknote.

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Evidence Law

INTRODUCTION:- The law of evidence is the most important branch of adjective law . It is to legal practice what logic is to all reasoning . Without it, trail might be infinitely prolonged to the great detriment of the public and the vexation and expense of suitors.

It is by this that the judge separates the wheat from the chaff among the mass of facts that are brought before him, decide upon their just and mutual bearing, learns to draw correct inference from the circumstance, and to weight the value of direct testimony.

DEFINITION OF EVIDENCE

According to section : – 3

  • All statement which the court permits or requires to be made before it by witness , in relation to matter of facts under enquiry; such statements are called oral evidence.
  • All documents including electronic record produced for the the inspection of the court; such documents are called documentary evidence .

TYPES OF EVIDENCE

  1. Oral evidence :- Section 60 of the Indian evidence act , 1872 deals with recording of oral evidence.

All those acceptable statement which the court assumes from the witnesses to help accomplish the direction of the truth of the facts laid before the court are oral evidence . Oral evidence which the witness has himself has seen or heard . It must always be direct . Evidence is direct when it primarily establish the main fact in an issue.

2. DOCUMENTARY EVIDENCE :- When a document is produce in a case in support of the case of the party producing it , the document becomes the documentary evidence in the case.

Documentary evidence helps determine the attitude and consciousness regarding the custom is viewed to be more important than oral evidence.

EXAMPLE:- medical record, written contact , marriage certificate.

3. PRIMARY EVIDENCE :- Is also known as original evidence , it is the top – most class of evidence. It is that proof which in any possible condition given a vital hint and appropriate direction for suitable action in a disputed facts and established for inspection by the court through documentary evidence on the production of an original document .

EXAMPLE:- audio recording, CCTV footage.

4. SECONDARY EVIDENCE :- It is the evidence produced in the absence of primary evidence; therefore, it is known as secondary evidence . If in place of primary evidence , secondary evidence is admitted without any objection at the proper time, then the parties are precluded from raising ant question against the document not being proved by primary evidence but by secondary evidence .

However , where there is no secondary evidence as contemplated by Section 66 of the Evidence Act, the document cannot be said to have been proved either by primary evidence or by secondary evidence .

5. REAL EVIDENCE :- Any material evidence is real evidence . This evidence of a fact is brought to the knowledge of the court by inspection of physical object and not just by information derived from a witness or a document.

6. HEARSAY EVIDENCE :- The acceptance and weightage of this evidence are very weak . It is the evidence which he has neither seen nor heard it is only the reported evidence of the witness .

7. JUDICIAL EVIDENCE :- Evidence received by the court of justice in proof or disproof of fact before the court .

8. NON – JUDICIAL EVIDENCE :- Any confession made by the accused outside the court in the presence of any person or the admission of the party .

9. DIRECT EVIDENCE :- Direct evidence is very important for the decision of the matter and fact in the issue presented , it may be either direct or indirect evidence .

10. INDIRECT EVIDENCE :- There is no different between indirect evidence or circumstantial evidence . they are synonymous circumstantial evidence paves the way to prove the fact in the issue by providing other fact and manages to pull out an instance as to its existence.

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Nani Palkhivala, The Legendary Lawyer Who Saved Our Democracy

In his treatise on political theory ‘Hind Swaraj’, Mahatma Gandhi heavily criticised lawyers for being instruments of British colonial rule and sucking the lifeblood of the poor.

A strange criticism considering Gandhi was once a lawyer and built his credentials on the basis of not just original political ideas, but also a real understanding of British colonial law.

“The lawyers… will, as a rule, advance quarrels, instead of repressing them… It is within my knowledge that they are glad when men have disputes. Petty pleaders actually manufacture them. Their touts, like so many leeches, suck the blood of the poor people,” he wrote.

In no way does this description apply to Nanabhoy “Nani” Ardeshir Palkhivala, the legendary 20th-century jurist and self-taught economist.

Palkhivala fought some of the most crucial battles in Indian constitutional history defending among other things the Fundamental Rights of ordinary citizens.

“Political freedom and civil liberty are the keystones of the Indian Constitution. Our Constitution is primarily shaped and moulded for the common man. The only persons who would be disappointed with our Constitution are those who believe in outdated ideologies which can only result in levelling down and not levelling up,” he once wrote in a 1971 column, defending the Right to Property.

Born on January 16, 1920, Nani Palkhivala grew up in a middle-class Parsi household. Graduating from St. Xavier’s College in Bombay (now Mumbai), he excelled in academics although he struggled with a speech impediment.

Unable to find work as a lecturer in Bombay University after his Master’s in English literature, he enrolled at the Government Law College, Bombay, where he found his true calling in life.

Nani Palkhivala rose high in the profession, arguing cases in commercial and tax law. Besides fighting a multitude of cases, he also wrote ‘The Law and Practice of Income Tax’ alongside Sir Jamshedji Behramji Kanga, a senior lawyer of repute, by the time he was 30 years old.

More than six decades later, the book is still a point of reference for tax professionals in India.

In May 1954, Nani Palkhivala fought his first case of serious constitutional significance in the Bombay High Court concerning the interpretation of Article 29(2) and Article 30, challenging a circular issued by the then State of Bombay.

Article 29(2) prohibits discrimination in matters of admission into educational institutions on grounds only of religion, race, caste, language or any of them, while Article 30 upholds the right of the minorities “to establish and administer educational institutions.”

As per the circular, “no primary or secondary school shall from the date of the order admit to a class where English is used as the medium of instruction any pupil other than a pupil belonging to a section of citizens the language of which is English namely, Anglo-Indians and citizens of non-Asiatic descent.”

Standing for the Barnes High School, an Anglo-Indian school which received aid from the government, Palkhivala argued that the order violated Article 29(2) and 30. He won the case in court and even defeated a challenge issued by the State of Bombay in the Supreme Court.

Palkhivala was a man who revered the Constitution of India and the principles it stood for.

“The Constitution was meant to impart such a momentum to the living spirit of the rule of law that democracy and civil liberty may survive in India beyond our own times and in the days when our place will know us no more,” he once said.

Although, through the course of his career, he fought 140 prominent cases according to Maj Gen Nilendra Kumar, author of ‘Nani Palkhivala: A Role Model‘, the one which will forever stand the test of time is the famous Kesavananda Bharati vs. The State of Kerala case in the Supreme Court.

Through its very first amendment to the Constitution, the Parliament had added the Ninth Schedule of the Constitution, under which certain laws were beyond the scope of judicial review.

The Jawaharlal Nehru government essentially established it with the objective of preventing the judiciary from interfering with its land reforms.

With the Right to Property still a fundamental right at the time, many attempts at land reforms by the government were met with a judiciary which upheld that particular right of the citizen.

This particular case, however, was between Swami Kesavananda Bharati, who ran a Hindu mutt in Kasargod district, Kerala, and the State government, which under two state-led land reform acts, sought to impose restrictions on the “management of his property.”

Palkhivala defended the Swami asking him to file his petition under Article 26 of the Constitution, “concerning the [Fundamental] right to manage religiously owned property without government interference.”

In a landmark judgement issued by the Special Bench of the Supreme Court comprising of 13 judges, the court ruled that Article 368 (which confers the right to amend the Constitution upon the Parliament) “does not enable Parliament to alter the basic structure or framework of the Constitution” by a slender 7-6 margin.

It is the judgement, which gave birth to the “the basic structure” doctrine, under which, “basic features,” are the fundamental rights granted to individuals, among other provisions.

“His [Palkhivala’s] firm belief was that [the] Parliament’s amending power is not absolute, the amending power is subject to inherent and implied limitations which do not permit Parliament to destroy any of the essential features of the Constitution and thereby damage the basic structure of the Constitution,” writes Maj Gen Nilendra Kumar.

It is a belief which the Supreme Court upheld. This is the case which saved Indian democracy.

The judgement was “a salutary check” on Parliament’s tendency to “encroach upon fundamental rights,” adds Maj Gen Nilendra Kumar. Credit for the judgement must got to Kesavananda Bharati, Palkhivala and the seven judges who were in the majority

It’s evident that Palkhivala wasn’t afraid of taking on the government.

During the period of Emergency, Palkhivala and a group of lawyers fighting cases of civil liberties went to the Supreme Court on November 10, 1975. They challenged its proclamation and suspension of all Fundamental Rights.

Only days earlier, he had agreed to defend Indira Gandhi, who challenged the Allahabad High Court order that had declared her election to the Lok Sabha in 1971 void. Following the announcement of the Emergency, Palkhivala returned her brief.

For two days, Palkhivala and his band of lawyers challenged the Centre’s application to the Supreme Court to reverse the Kesavananda Bharti judgement. Such was the force of his arguments that four out of the five judges on the bench agreed with him.

When left in a minority of one on November 12, Chief Justice AN Ray dissolved the bench. Before this judgement, he had unsuccessfully challenged the Indira Gandhi government’s erroneous policy decision to nationalise banks in 1969.

The Indian banking sector continues to suffer the consequences of bank nationalisation.

He also unsuccessfully challenged the government’s midnight executive order de-recognising the Privy Purse provisions issued by the Constituent Assembly for royal families as part of their agreement to merge their erstwhile kingdoms with the Indian Union. The order also de-recognised their existing titles.

“The survival of our democracy and the unity and integrity of the nation depend upon the realisation that constitutional morality is no less essential than constitutional legality. Dharma (righteousness; a sense of public duty or virtue) lives in the hearts of public men; when it dies there, no Constitution, no law, no amendment, can save it,” said Palkhivala.

Having said that, other significant successes followed, notably the Bennett Coleman & Co. vs Union of India case in 1972, where he defended the proprietors of the Times of India from harassment by the Union government, which sought to stifle dissenting views against regime emerging in the newspaper.

In a strategy to muzzle the newspaper, the Centre had issued strict import controls on newsprint. Defending the right to free speech and expression, he said, “Newsprint does not stand on the same footing as steel. Steel will yield products of steel. Newsprint will manifest whatever is thought of by man.” He won that case.

For a brief while Nani Palkhivala also served as India’s Ambassador to the United States during the Janata Party government from 1977 to 1979.

The prestigious Princeton University said “he [Nani Palkhivala] has courageously advanced his conviction that expediency in the name of progress, at the cost of freedom, is no progress at all, but retrogression. Lawyer, teacher, author, and economic developer, he brings to us as Ambassador of India intelligence, good humour, experience, and vision for international understanding….”

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Hierarchy of Criminal Courts and their Jurisdiction

Administration of justice is the most important function of the State. For this purpose our Constitution has set up a hierarchy of courts. The Supreme Court of India is the highest court and is a body constituted by the Constitution itself. The High Courts of respective states are also provided by the Constitution. The other criminal courts there power and functions are provided by the Cr. P. C.


Supreme Court Of India:

The Supreme Court is the apex Court of India. It is established by Part V, Chapter IV of the Constitution. Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India.

The Supreme Court of India comprises the Chief Justice and 30 other Judges appointed by the President of India. Supreme Court Judges retire upon attaining the age of 65 years. In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for at least five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years or he must be, in the opinion of the President, a distinguished jurist. Provisions exist for the appointment of a Judge of a High Court as an Adhoc Judge of the Supreme Court and for retired Judges of the Supreme Court or High Courts to sit and act as Judges of that Court.

The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends. In addition, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari to enforce them.

The Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court. The Supreme Court, if satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, may withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself. Under the Arbitration and Conciliation Act, 1996, International Commercial Arbitration can also be initiated in the Supreme Court.

The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgment, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution.

Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies:

  1. that the case involves a 7 substantial question of law of general importance, and
  2. that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court.

In criminal cases, an appeal lies to the Supreme Court if the High Court:

  1. Has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or
  2. has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or
  3. certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court.

High Court:

The High Court stands at the head of a State’s judicial administration. Each High Court comprises of a Chief Justice and such other Judges as the President may, from time to time, appoint. The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the State.

The procedure for appointing Judges is the same except that the Chief Justice of the High Court concerned is also consulted. They hold office until the age of 62 years and are removable in the same manner as a Judge of the Supreme Court. To be eligible for appointment as a Judge one must be a citizen of India and have held a judicial office in India for ten years or must have practised as an Advocate of a High Court or two or more such Courts in succession for a similar period.

Each High Court has power to issue to any person within its jurisdiction directions, orders, or writs including writs which are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Fundamental Rights and for any other purpose.

This power may also be exercised by any High Court exercising jurisdiction in relation to territories within which the cause of action, wholly or in part, arises for exercise of such power, notwithstanding that the seat of such Government or authority or residence of such person is not within those territories.

Each High Court has powers of superintendence over all Courts within its jurisdiction. It can call for returns from such Courts, make general rules and prescribe forms to regulate their practice and proceedings and determine the manner and form in which book entries and accounts shall be kept.

Constitution Of Criminal Courts And Their Territorial Jurisdiction:

The criminal courts are constituted according to the Criminal Procedure Code (Cr.P.C) 1973.

Section 6 of the Cr.P.C. provides that Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:

  1. Courts of Session;
  2. Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
  3. Judicial Magistrates of the second class; and
  4. Executive Magistrates
     
  1. The Sessions Judge:
    Section 9 of the CrPc talks about the establishment of the Sessions Court. The State Government establishes the Sessions Court which has to be presided by a Judge appointed by the High Court. The High Court appoints Additional as well as Assistant Sessions Judges. The Court of Sessions ordinarily sits at such place or places as ordered by the High Court. But in any particular case, if the Court of Session is of the opinion that it will have to cater to the convenience of the parties and witnesses, it shall preside its sittings at any other place, after the consent of the prosecution and the accused. According to section 10 of the CrPC, the assistant sessions judges are answerable to the sessions judge.
     
  2. The Additional/ Assistant Sessions Judge:
    These are appointed by the High Court of a particular state. They are responsible for cases relating to murders, theft, dacoity, pick-pocketing and other such cases in case of absence of the Sessions Judge.
     
  3. The Judicial Magistrate:
    In every district, which is not a metropolitan area, there shall be as many as Judicial Magistrates of first class and of second class. The presiding officers shall be appointed by the High Courts. Every Judicial Magistrate shall be subordinate to the Sessions Judge.
     
  4. Chief Judicial Magistrate:
    Except for the Metropolitan area, the Judicial Magistrate of the first class shall be appointed as the Chief Judicial Magistrate. Only the Judicial Magistrate of First Class may be designated as Additional Chief Judicial Magistrate.
     
  5. Metropolitan Magistrate:
    They are established in Metropolitan areas. The High Courts have the power to appoint the presiding officers. The Metropolitan Magistrate shall be appointed as the Chief Metropolitan Magistrate. The Metropolitan Magistrate shall work under the instructions of the Sessions Judge.
     
  6. Executive Magistrate:
    According to section 20 in every district and in every metropolitan area, an Executive Magistrate shall be appointed by the State Government and one of them becomes District Magistrate.

Power Of Courts To Try Offences:

Chapter III of Cr.P.C. deals with powers of Courts. One of such power is to try offences. Offences are divided into two categories:

  1. Those under IPC; and
  2. Those under any other law.

According to section 26 any offence under IPC 1860 may be tried by the HC or the Court of Session or any other Court by which such offence is shown in the first schedule to be triable, whereas any offence under any other law shall be tried by the Court mentioned in that law and if not mentioned, it may be tried by the HC or any other Court by which such offence is shown in the First Schedule to be triable. This section is a general section and is subject to the other provisions of the Code.

Power Of The Court To Pass Sentences:

Sentences which may be passed by the courts have been mentioned under section 28 and 29 of criminal procedure code.

  1. Sentences which High Courts and Sessions Judges may pass:
    According to section 28, A High Court may pass any sentence authorised by law. A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years. Thus, section 26 enumerates the types of Courts in which different offences can be tried and then under section 28, it spells out the limits of sentences which such Courts are authorised to pass.
     
  2. Sentences which Magistrates may pass:
    Section 29 lays down the quantum of sentence which different categories of Magistrates are empowered to impose. The powers of individual categories of Magistrates to pass the sentence are as under:
    • The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.
    • The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.
    • The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.
    • The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class.
       
  3. Sentence of imprisonment in default of fine:
    When a fine is imposed on an accused and it is not paid, the law provides that he can be imprisoned for a term in addition to a substantive imprisonment awarded to him, if any. Section 30 defines the limits of Magistrate’s powers to award imprisonment in default of payment of fine.

    It provides that the Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provided that the term:
    1. Is not in excess of the powers of the Magistrate under section 29;
    2. Shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one- fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.
       
  4. Sentences in cases of conviction of several offences at one trial:
    Section 31 relates to the quantum of punishment which the Court is authorised to impose where the accused is convicted of two or more offences at one trial.
    1. When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860 ), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
       
    2. In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: Provided that-
      1. In no case shall such person be sentenced to imprisonment for longer period than fourteen years;
      2. The aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence.
         
    3. For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.
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Legal To Kill People If They Trespass

In most states, the property line, not the entrance to the home, is the boundary for trespass. Someone walking across your property to get elsewhere is a nuisance but does not justify deadly force. If you confront the person with a gun, they will likely get the message and avoid your property. The standard test for the actual use of deadly force, Is it legal to kill people if they trespass into your house, however, is did you fear for your life? A man in Florida was visited by a local pastor, and told the pastor if he ever came back, the man would shoot him. Years later, the pastor’s car broke down, nearby, so he walked to the nearest house, which happened to be this man’s house again, and the man stepped onto the porch with a rifle and felled the pastor with one round.

He went to jail for life. In Mumbai, a series of burglaries was plaguing a neighbourhood. Some college students were at a costume party, and upon leaving one of them decided to ask a homeowner for the use of their phone – still in costume. The owner shot him through the door and killed him. No action was taken.

An officer in Alabama told me it is a myth that if someone is trying to enter your home and you “shoot through the door” that you will be prosecuted because they weren’t inside your home. People were advising others: “If he’s climbing into your home through a window, and you shoot him, and he falls outside, you need to pull him back inside so they won’t prosecute you.” It’s nonsense. If you feared for your life, this is the only test for deadly force. Someone breaking into your house isn’t causing alarm?

The forensic team will find it obvious if you shot him outside your house and dragged or pulled him back inside. If this happens, the judge will question whether or not you fear for your life. If you had the presence of mind to modify the scene to fit a narrative, maybe you don’t have a clear conscience about what you did. If your fear for your life, it doesn’t matter where the body landed.

Likewise, if you decide to shoot for the knees – this is indicative of a person who still has the presence of mind, not fear of life. A person in fear of life is not selective with their shots. Shot-selection will be frowned upon by the court. If he’s in your home and you’re not in fear of your life, what else could be happening? The law will look to the reasons you may have decided not to use deadly force.

“Intent” is in play for the perp, just make sure it doesn’t fall back on you. Criminal intent has less to do with what was on your mind at the time, and more to do with potential outcomes. If you fire a round at a perp, the law does not regard warning rounds – the act of firing a round is an intent to kill, because death is a possible outcome and any reasonable person knows this. “Intent” is established by any reasonably foreseeable outcome whether it was on the perp’s immediate mind, or whether it was on yours.

If a perp enters another’s home, it is a reasonably foreseeable outcome that the homeowner may catch and kill them. It is therefore reasonable for the homeowner to presume to kill people the person is ready to defend themselves from this outcome and doesn’t have to see a weapon in the perp’s hand to act with deadly force in their own defence.

kill people, a man came into his garage while thieves were there, and one pointed a gun at him, so he stood still. The thieves were caught several hours later. The prosecutor told the owner, “If you say you feared for your life, the penalties for them will be more severe.” So when it came time to testify, and he was asked the question, he said, “Naah, I wasn’t afraid of those punks.” And they got a lighter sentence. Nobody will question your manhood if you say you were afraid on the business end of a pistol.

kill people, as in most states, the law looks at differential of force. If an elderly woman is accosted by a young man who is unarmed, the woman shoots the man, the law will fall on her side because the unarmed man could easily kill people overpower and kill her. Not so much if the situation is reversed. A young man accosted by an unarmed elderly woman won’t be seen favourably for shooting her. Likewise, if one is walking down the street and is surrounded by five gang members, all unarmed, the person is justified in using deadly force because the five could fall on him and kill him with bare hands alone.

Likewise, if a person is accosted by a trained fighter (karate blackbelt or licensed boxer) and knows of the person’s training, deadly force is justified. What is more desirable of course, is to remove yourself from the situation, because trained fighters typically don’t pick fights with John Doe. They already know the risk.

Back to someone entering your home. In Texas, deadly force is justified for anyone on your property (inside or outside) who is engaged in “criminal mischief at night” or any activity rising above it, and home invasion certainly does. A man heard a burglar in his kitchen, prepared his weapon and confronted the perp raiding his fridge. He told the man to freeze, put his hands over his head, and don’t say a word. The perp wisely did so. Then the owner’s son entered the kitchen and said, Dad, this is my roommate.

They were visiting from college, unannounced. How tragic would that have been? The point being, ascertain as quickly as possible what is happening because once the bullet is fired, it’s not coming back.

A man hears some human growling in his closet. He arms himself and tells the perp to come out. They keep growling. He warns them again. The perp bursts from the closet with a loud screech and the man is startled, and reacts by firing the weapon, and kills his daughter. Her last words were I love you, Daddy.

kill people, criminal mischief is pretty broad. What if you come outside at night, and see moving shadows alongside your car? What are they doing? Stealing tires, hubcaps, or gas? It qualifies as criminal mischief, and you don’t have to determine what they are doing. They don’t belong. Let’s say some neighbourhood kids come down to your house with toilet paper and you catch them filling your trees with it. It qualifies as criminal mischief, but are you really going to open fire on them?

A man caught a person stealing gas from his car (criminal mischief) and when caught, the perp snatched the can and ran for it. The owner gave chase. When the owner caught the perp, he handed over the gas can and ran for it. The owner fired one round and hit him in the hip, and felled him, but didn’t kill him. When the police arrived, they arrested the homeowner.

In this case, the homeowner was the victim while still on his property, but when he gave chase, the roles reversed and he became the perp, and the perp became the victim. That he shot the thief in the back, is relevant, but not as relevant as the role reversal. When the perp fled the original scene, the justification for deadly force ended. The owner could not have claimed fear-of-life since the perp was running away.That he gave chase made it worse, and turned himself into the perp. The law sees this as two confrontations, not a continuous one.

What do the police advise? They are trained to clear a home, and you are not. If someone is on your property, call the police. If you hear someone in your home, and you are not in immediate danger, arm yourself and call the police. Don’t take the matter into your hands until you or a loved one is in danger. Might surprise you how easy it is to hide in your home’s shadows, and most burglars know how to do this – quickly enough to get the drop on a sleepy homeowner with a gun in one hand and a flashlight in the other – you’re like a walking target with “shoot me” on your chest. Your property is replaceable. Your life is not.

But burglars don’t often come at night when the owners are home. And most of them can’t stand dogs. Whether it’s a killer attack dog or not, they are a nuisance to a burglar. He will be in and out of your home in less time than the police can respond (usually less than ten minutes), so if you have a need for an alarm in your home, buy it for fire alarm, carbon monoxide and such, but you won’t get much use out of it for burglary. You should keep ABC fire extinguishers in every bedroom and kitchen, and store them on their sides (the particulate settles to the bottom if they are standing up).

If you keep weapons in the house, keep them in a gun-safe, not in a drawer or other easily-accessible location. Thieves usually arrive when you’re not there, and look in the most obvious places, and like to take guns away from people. For them, it’s an unregistered weapon. It’s not smart to leave weapons out in the open, or easily accessible, even if you live alone. A person came into a county to kill people and had automatic weapons. He received the requisite permissions from the sheriff, the county judge, but not the prosecutor, who told him to put the weapons in a safe. Seems his favourite storage location was under his bed, and he lived alone. The prosecutor told him – I don’t want some punks to burglarize your home, and the next thing is running around in my district with an automatic weapon.

#legal #right

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